USTR Needs To Reread Both The Constitution & The Definition Of Transparency

from the this-is-a-joke dept

As there is increasing pressure on the USTR over its total lack of transparency in the TPP negotiations (unless, of course, you're a special interest, in which case you get full access) it has now released what it calls a "fact sheet" about its "transparency" efforts. Of course, the only thing truly "transparent" here is just how hard the USTR worked to hide how opaque it has been in these negotiations. The "fact sheet" is chock full of things that aren't remotely factual.

Let's focus in on the big one:

Under the U.S. Constitution, the President is responsible for conducting U.S. foreign relations, including by negotiating and concluding trade and investment agreements with other governments.

That's only partially true -- and as with all sorts of "truthy" arguments, the real truth is in what the USTR conveniently leaves out. As you all know from your pocket copies of the Constitution, in Article II, Section 2, the executive branch is granted a specific power: "He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur..." Treaties, yes, but those "treaties" were supposed to be about things like military alliances and such. When it comes to commerce... er, nope. That's Congress' mandate alone. Back to the Constitution and Article I, Section 8, where it clearly states that Congress is granted the power "To regulate Commerce with foreign Nations."

The second big problem is one we've discussed repeatedly. The USTR continues to pretend that letting people speak their concerns to the USTR is a form of transparency. That's ridiculous. Listening to concerned parties is not transparency. It may be "access" and it could certainly be worthwhile and influence the agreement, but it's not transparent. Transparency is about sharing information in the other direction. And, as the "fact sheet" makes clear, that only happens if you're a special interest.

Amazingly, the USTR claims that these special interest groups having access is a form of "transparency." Once again, I think it needs to better understand what transparency means. Only providing access to a select number of groups whose key interests don't align with the public's is not "transparency." It's cronyism and corruption. How does "the public" get onto a "trade advisory committee?" How many internet startups are on a "trade advisory committee?"

The USTR also, once again, trots out its bogus line about how it is transparent with Congress about the TPP -- leaving out the fact that they only allow elected officials to view the document in a special room, where they're not allowed to make copies, take notes or (most importantly) bring along staffers who are experts in trade. Even worse, the USTR has directly refused to provide access to the staff director of the Senate Subcommittee on International Trade. Let's think about that. The supposedly "transparent" USTR is refusing to allow the staff director of the Senate subcommittee in charge of international trade -- which, once again, is an issue that the Constitution mandates solely to Congress and not the Executive branch. This is transparency?

Oh, also, apparently the USTR thinks "transparency" involves taking quotes totally out of context. This is really pretty obnoxious. This "fact sheet" has a sidebar that includes two quotes strategically chosen from "critics" of the USTR, which the USTR positions as if to show that both groups agree that that it has been transparent. Nothing is further from the truth. If you put the very selectively quoted text back into context you discover that both come from statements raising concerns about the transparency -- but providing boilerplate praise for the fact that they're allowed to speak their mind to the USTR (which, again, is one way traffic in the wrong direction). First up, we have a quote from Celeste Drake of the AFL-CIO. This is how the USTR shows it:

"This Administration deserves to be commended for the outreach in which it has engaged. The cleared advisors for the AFL-CIO and its affiliates have spent dozens of hours discussing with Administration negotiators the specific issues that are involved in the TPP talks and offering concrete recommendations. We have appreciated the spirit of cooperation and dialogue exhibited by the Administration at all levels...

...the AFL-CIO has concerns about the overall secrecy of trade negotiations in general and would recommend broader sharing of USTR’s negotiating goals and proposals beyond the cleared advisor community. However, the level of engagement has been noteworthy..."

I'm actually a little surprised that they left in that "has concerns" line, since they removed lots of other things. You can see Drake's entire testimony (pdf) if you'd like. Nearly everything in there is a slam on the USTR for what it's likely putting into the TPP. Even the section selectively quoted here leaves out the preamble, which notes that the AFL-CIO is not happy. Here's the text with a little bit more context (but feel free to read the full thing for much greater context and the fact that it's almost entirely against the USTR's practices with the TPP):

Without addressing the still-secret text of the TPP, I will discuss a few of our concerns
and recommendations with regard to some of the most pressing topics of the agreement. Before
I do, I would note that this Administration deserves to be commended for the outreach in which
it has engaged. The cleared advisors for the AFL-CIO and its affiliates have spent dozens of
hours discussing with Administration negotiators the specific issues that are involved in the TPP
talks and offering concrete recommendations. We have appreciated the spirit of cooperation and
dialogue exhibited by the Administration at all levels. Of course, access does not equal
influence, and it remains to be seen just how many of our suggestions will be incorporated into
the final text. Moreover, the AFL-CIO has concerns about the overall secrecy of trade
negotiations in general and would recommend broader sharing of USTR’s negotiating goals and
proposals beyond the cleared advisor community. However, the level of engagement has been
noteworthy—particularly when compared to the prior Administration.

See? Seems a lot less positive. The AFL-CIO is basically saying that just letting them show up and speak their mind is no excuse for the lack of actual transparency -- and that one-way form of communication is, once again, not transparent at all. Elsewhere in the same report, Drake slams the USTR's process of negotiating in secret:

Unfortunately, it has not been the practice of U.S. trade policy to engage in such
economic evaluations until after an agreement is finished. Only when the text is complete do we
learn of its potential to harm particular industries and their employees or to increase our global
trade deficit. As a result, the United States Trade Representative (USTR) is typically flying blind in the agreements, unsure exactly how the agreement would help our domestic economy or
bolster American workers, but secure in the belief that free trade will always do so.

This is not someone who is happy with the USTR process. Trotting them out as an example of greater transparency isn't particularly smart.

The second quote comes from Public Knowledge's Jodie Griffin. Here's how the USTR presents the quote:

"The USTR's stakeholder engagement website includes instructions both for registering for a stakeholder tables event and for making arrangements to make more formal presentations to negotiators. It's encouraging to see the USTR respond to stakeholder feedback so quickly and become more open to accommodating the needs of a variety of stakeholders.

... Transparency is a two-way street, and increasing the amount of information flowing from stakeholders to the government does not lessen the government's obligation to provide information about its activities and proposals to the public. That said, the USTR's efforts to help stakeholders engage with negotiators and make their case before the negotiating countries is promising."

For reasons I can only guess, the USTR does not provide a link to where that quote comes from, but I will. It's from a recent blogpost by Griffin, in which she does, in fact, praise the USTR for something very specific: agreeing to PK's suggestion that the upcoming negotiating round allow for both presentations by public interest stakeholders and a tabletop "fair" setup -- rather than having one or the other, as in past rounds. But... if you read the full blog post, you see that Griffin completely slams the "shocking lack of transparency" from the USTR:

The Elephant in the Room: Transparency

Of course, it must be said that all of the stakeholder engagement
events in the world cannot make up for the shocking lack of
transparency surrounding the substance of the negotiations and the
TPP's text. Stakeholder events also cannot truly be effective if the
negotiators are obviously not interested in hearing from public
interest groups.

Transparency is a two-way street,
and increasing the amount of information flowing from stakeholders to
the government does not lessen the government's obligation to provide
information about its activities and proposals to the public.

In other words, neither of these quotes are actually saying that they appreciate the USTR's efforts on transparency. They are talking about how the USTR is willing to let them speak, occasionally, and under specific and planned circumstances -- but not about transparency.

Once again, it appears that the USTR is working with a different definition of "transparency" than the rest of the world and... also a different edition of the Constitution.

Put them in jail

I think Congress should approve a special new jail for people like Ron Kirk who seemingly are ignoring the constituion and instead are taking the orders of their corporate masters. The USTR should be held for activities agsinst the American people and the people in charge jailed for treason.

U.S. trade agreements such as the North American Free Trade Agreement (NAFTA), World Trade Organization agreements, and bilateral free trade agreements (FTAs) have been approved by majority vote of each house rather than by two-thirds vote of the Senate—that is, they have been treated as congressional-executive agreements rather than as treaties. The congressional-executive agreement has been the vehicle for implementing Congress’s long-standing policy of seeking trade benefits for the United States through reciprocal trade negotiations. In a succession of statutes, Congress has authorized the President to negotiate and enter into tariff and nontariff barrier (NTB) agreements for limited periods, while permitting NTB and free trade agreements negotiated under this authority to enter into force for the United States only if they are approved by both houses in a bill enacted into public law and other statutory conditions are met; implementing bills are also accorded expedited consideration under the scheme.

Congress most recently granted the President temporary trade negotiating authority utilizing this approach in the Bipartisan Trade Promotion Authority Act of 2002 (BTPAA), contained in Title XXI of the Trade Act of 2002, P.L. 107-210. Although the authority expired during the 110th Congress, agreements entered into before July 1, 2007, remained eligible for congressional consideration under the expedited procedure. The President had entered into free trade agreements with Colombia, Korea, and Panama before this date, each of which awaited congressional approval at the time. In October 2011, Congress approved the three pending agreements, making a total of 11 free trade agreements approved under the BTPAA process. In addition, the United States Trade Representative (USTR), on behalf of the President, notified the House and Senate in December 2009 by letter that the President intended to enter into negotiations aimed at a regional, Asia-Pacific trade agreement, known as the Trans-Pacific Partnership (TPP) Agreement. Notwithstanding the expiration of BTPAA authorities, the USTR has stated the Administration was observing the relevant procedures of the act with respect to notifying and consulting with Congress regarding these negotiations.

A federal appeals court held in 2001 that the issue of whether the NAFTA should have been approved as a treaty was a nonjusticiable political question (Made in the USA Found. v. United States, 242 F.3d 1300 (11th Cir. 2001)). The U.S. Supreme Court denied review in the case.

I'm not sure where all this USTR bashing is coming from. We are all aware that these TPP negotiations are taking place. We are usually aware of where they are happening and some of the groups participating. We even know the general topic of the treaty.

How can you just discount all of that information being shared and not see that as the transparency it is?!?

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Re: Re:

In addition, the United States Trade Representative (USTR), on behalf of the President, notified the House and Senate in December 2009 by letter that the President intended to enter into negotiations aimed at a regional, Asia-Pacific trade agreement, known as the Trans-Pacific Partnership (TPP) Agreement. Notwithstanding the expiration of BTPAA authorities, the USTR has stated the Administration was observing the relevant procedures of the act with respect to notifying and consulting with Congress regarding these negotiations.

So, in the good old days, they had to get direct authority from congress to begin negotiations, but now just sending a letter to congress letting them know that they are going to start negotiations is good enough? How does that work?

it isn't us that you need to tell this stuff to, or convince. it's those in the USTR, in particular Ron Kirk, that are keeping discussions over 'treaties like TPP secret, even from those that grant it's funding. however, when the President does nothing to alleviate the situation, what chance has anyone else? perhaps withdrawing the funding and disbanding the USTR might achieve something?

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Because law enforcement is the province of the Executive Branch too, and in case you hadn't noticed, the Chief Executive (and even more so but less visibly, the Vice President) has been directly involved in setting all this corruption up since he took office!

Asking the current administration to do something about this problem makes about as much sense as asking Phillip Morris to do something about tobacco addiction, and will provoke the same results: a lot of talk until the critics are appeased, and zero real action.

Why the secrecy?

And why, exactly, do the negotiators want any proposed text kept secret? Well, I can think of a few reasons:

1) They initially propose something outrageous, which is later taken out due to pressure from other countries. If everything kept secret, the public never leans about the outrageous provision so the public can't oppose it (until they sneak it into the NEXT agreement - but if they can keep the public from knowing until after it actually gets into an agreement, they'll just say it's too late to fix it.)

2) The text is initially OK, but after some negotiations they put in an outrageous provision. If the negotiations are strictly secret, the public never learns that this was put in at the last minute or who wanted it in there.

3) One of the provisions a country really wants is taken out during the negotiating process. If the negotiations are public, that country's feelings will be hurt because everyone will know they didn't get what they wanted. Said hurt feelings cause them to not sign the agreement, causing global financial collapse as software piracy reaches 115% and the watch market is flooded with Lolex watches.

Strange

Now, I know politicians aren't exactly well known for playing well with each other, but one would think that this would be an issue the entire congress could agree on.

"Look guys, someone is spending money lobbying the USTR to buy their compliance. That is money that could have been spent padding our reelection funds to buy our compliance!"

Really, you would think congress critters would realize that the existence of another entity worth bribing would mean they'd have to compete for their bribe money, then pass a joint resolution to cut all funding to the USTR or something...

Well how about that: It IS a joke

In the third paragraph: "Treaties, yes, but those "treaties" were supposed to be about things like military alliances and such."

Mr. Masnick needs to dig his own pocket Constitution and read it again: Nowhere in the Constitution does it say that a treaty is, "...like military alliances and such." Like contracts, treaties are about anything on which countries can reach agreement: There are no restrictions on the subject of treaties. And since the Constitution says the president can make treaties, but does not specify any particular type of treaty, he can make a treaty on any subject.

I don't like the subject of some of the treaties being made, but this argument is futile: From the premise on down.

"Back to the Constitution and Article I, Section 8, where it clearly states that Congress is granted the power "To regulate Commerce with foreign Nations.""

So you're saying that congress has the power to regulate commerce with foreign nations, but if someone decides to call it a "treaty" then suddenly the President has the power too? I would like to think the framers put a liiiitle more thought into it than that...

USTR's definition of transparency

Here's how screwed up the USTR's definition of transparency is:
If transparency is what it should be, then a two-way mirror would reveal someone in front of the mirror to someone behind the mirror, but the person in front of the mirror would only see a reflection.
If transparency is what the USTR thinks it should be, then a two-way mirror would reveal both a reflection and the imagine of someone behind the mirror to someone in front of the mirror, but the person behind the mirror sees nothing.
We are behind the mirror, and the USTR is in front of it. Real transparency should be the first case: the USTR sees its own negotiations and so should we (even if we are not allowed to actively contribute, which would still be a bad thing). USTR-style transparency is the second case: the USTR sees its own negotiations and sees us, claims that we can see it too, but we see nothing at all.

[5] The Government contests this historical account, noting that not all commentators agree with Bestor's conclusions regarding the adoption of the Treaty Clause. Perhaps most prominently, Professors Myres McDougal and Asher Lans, two of the early advocates of the congressional-executive agreement as an alternative to the Treaty Clause, contend that "three salient facts emerge" from what we know of the Framers' discussions regarding the constitutional framework for the governance of foreign affairs: (1) the Framers paid relatively little attention to the matter; (2) as a general rule, "the delegates ... sought to remove the determination of foreign policy at least in the immediate future as far as possible from popular control"; and (3) the language used by the Framers "clearly permits utilization of other methods than that provided in the treaty clause for securing validation of international agreements...." Myres S. McDougal and Asher Lans, II Treaties and Congressional-Executive or Presidential Agreements: Interchangeable Instruments of National Policy, 54 Yale L.J. 534, 536-37 (1945) (hereinafter "McDougal and Lans II").

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"Asking the current administration to do something about this problem makes about as much sense as asking Phillip Morris to do something about tobacco addiction"

You mean create helpful quitting-assistance products to help ween people of nicotine? Who cares if people who use them have a higher chance of becoming smokers again than people who try to quit cold turkey. Also the profit margins are better on the quit-assist products.

Actually that sounds a lot like what the administration will do. Implement a policy that says it will help but is actually more likely to cause it to happen again, while increasing profits for someone other than the public surely.

Article I, § 10, cl. 1, of the Constitution—the Treaty Clause—declares: "No State, shall enter into Any Treaty, Alliance or Confederation . . . ." Yet Art. I, § 10, cl. 3—the Compact Clause—permits the States to enter into "agreements" or "compacts," so long as congressional consent is obtained. The Framers clearly perceived compacts and agreements as differing from treaties. The records of the Constitutional Convention, however, are barren of any clue as to the precise contours of the agreements and compacts governed by the Compact Clause. This suggests that the Framers used the words "treaty," "compact," and "agreement" as terms of art, for which no explanation was required and with which we are unfamiliar. Further evidence that the Framers ascribed precise meanings to these words appears in contemporary commentary.

Whatever distinct meanings the Framers attributed to the terms in Art. I, § 10, those meanings were soon lost. In 1833, Mr. Justice Story perceived no clear distinction among any of the terms. Lacking any clue as to the categorical definitions the Framers has ascribed to them, Mr. Justice Story developed his own theory. . . .

The USTR and all the "artists" need to remember what this crap called art is all about.

Expression, not monopolies. It is about feelings not money, it is about connecting with people not making your best to make them hate you.

From memory I recall a story that I heard elsewhere, can't remember where about David Miles and his famously a-holish attitude, the guy spoke little and when he spoke generally was to offend others like the ex-first lady Nancy Reagan asked him what he has done to deserve a sit on the table with the US president and the comeback was "I changed the course of music 5 or 6 times, now what do you did besides fucking the president?", but I digress the thing I wanted to tell about him is the story about a show that he appeared on the stage, played exactly one note and rushed out and people started applauding, a guy ask the event manager why those people where applauding Miles he did nothing and the reply was "People don't come to see him play", meaning people loved Miles despite all his flaws, he was able to connect with others in such a way that made him an iconic figure, they felt something about him, they could sense it and they love it, it didn't matter what his music was, the music was irrelevant, people didn't buy anything from David Miles because he owned it, but because everybody wanted a piece of David Miles, he didn't need to protect music he wrote, he didn't need to protect his revenues streams, he was going to get it no matter what others did, because people wanted him to have it.

That is something that no government can force others to do, that is something no amount of litigation can buy, that is something that you earn it, you just can't demand it.

Since governments enforce laws with violence a government established monopoly is a violently defended monopoly. Monopolies defended with violence should not be tolerated and those who use violence to defend their market share should be jailed.

We should not tolerate violently defended cableco, broadcasting, taxi cab, IP, mailbox delivery, and other monopolies. No group of people has any business defending their market position with violence.

What I'm against is those who defend their market share with violence. We should not tolerate anyone or any group of people that defend their market share with violence (the govt-industrial complex). It's unacceptable. You want to defend your market position, you want to defend your market share, offer a better product at a cheaper price. Compete. But don't use violence to maintain your market position. Find some other way to defend your market share.

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Already answered above:

"A federal appeals court held in 2001 that the issue of whether the NAFTA should have been approved as a treaty was a nonjusticiable political question (Made in the USA Found. v. United States, 242 F.3d 1300 (11th Cir. 2001)). The U.S. Supreme Court denied review in the case."

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"Summary

U.S. trade agreements such as the North American Free Trade Agreement (NAFTA), World Trade Organization agreements, and bilateral free trade agreements (FTAs) have been approved by majority vote of each house rather than by two-thirds vote of the Senate—that is, they have been treated as congressional-executive agreements rather than as treaties. The congressional-executive agreement has been the vehicle for implementing Congress’s long-standing policy of seeking trade benefits for the United States through reciprocal trade negotiations. In a succession of statutes, Congress has authorized the President to negotiate and enter into tariff and nontariff barrier (NTB) agreements for limited periods, while permitting NTB and free trade agreements negotiated under this authority to enter into force for the United States only if they are approved by both houses in a bill enacted into public law and other statutory conditions are met; implementing bills are also accorded expedited consideration under the scheme."

The section in bold is the most important part. Yes the President can negotiate the treaties or "Congressional-Executive" agreements, but they must still be voted on and pass both houses which theoretically is harder than just passing a Senate vote.

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In fact, perhaps a better word for the govt-industrial complex is terrorists. The govt-industrial complex is nothing but a group of people that use fear, fear mongering, and the threat of violence to get their way for political and selfish reasons. They're violent terrorists.

Arguing over the Constitution

(IMHO) almost misses the point ... there will always be disagreement about such things.

My first question is under whose authority does the USTR deny a Senators request? Why isn't he arrested for doing that? (or at least be "forcibly removed from the building" so the Senator has access?) How can that be legal; does he have a note from the President?

and if we can play games with 'who has what authority' (concerning treaties) then we can also change our assumptions about the public's ability understand (via our ELECTED reps) AND the motivations, tactics, & morals of those close to the negotiations.

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For a clueless dweeb who was a member of two 2nd rate bands, he sure does think a lot of himself.
I hadn't heard of him before this little outbreak, and I seriously doubt I'll hear his name again after this hooha dies off.
Sorry, dude, the boomers are done. All they have left to do is push up the daisies.

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When I said "real action" perhaps I should have been more clear: zero "helpful real action." Like in your example.

It's surprising how often we let this sort of thing happen. For example, have you ever heard of Methadone? It's used to treat opioid addiction, primarily for heroin but also for synthetic painkillers such as OxyContin.

Methadone is manufactured by a pharmaceutical company called Mallinckrodt. Interestingly enough, they're the same company that makes OxyContin...

Re: Put them in jail

Sentence them to death as traitors which is what these assholes are.
A Traitor is someone who is doing activities against the American People and against the Constitution and against the Senate.
USTR is doing all three of those.They are no better than a traitor is.

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The section in bold is the most important part. Yes the President can negotiate the treaties or "Congressional-Executive" agreements, but they must still be voted on and pass both houses which theoretically is harder than just passing a Senate vote.

That's not true. Getting 67 votes in the Senate is much more difficult than getting 50% plus 1 in both Houses. That's why there has been such emphasis on exec agreements.

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He is just as tough on major labels as he is tech parasites.

Haha, bull. Claiming to be not on a major label and claiming to refuse to have anything to do with major labels is not a sign of being tough on major labels. Especially when every single trichordist spam and topic derail he posts here are all about criticising Techdirt.

For someone who claims to be tough on major labels he sure spends a lot of time on a site that takes four guys to run and spam said blogposts everywhere. C'mon, he should at least have some time to, I dunno, pick up grammar skills?

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... in Article II, Section 2, the executive branch is granted a specific power: "He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur..." Treaties, yes, but those "treaties" were supposed to be about things like military alliances and such. When it comes to commerce... er, nope. That's Congress' mandate alone. Back to the Constitution and Article I, Section 8, where it clearly states that Congress is granted the power "To regulate Commerce with foreign Nations."

Pardon the minor diversion, but if the Founding Fathers really thought the two were separate concepts without a considerable degree of overlap, they're highly overrated.

Re: Re: Well how about that: It IS a joke

...yet it's not clear why, since internationally, they are all treated the same way, having the same effect.

Which brings us around to the original argument: It is empty because the president has no Constitutional content restrictions on treaties/agreements/compacts he can negotiate. Asserting he can only make treaties on "military alliances and such" is empty when "and such" effectively translates to "and anything".

Re: Re: Re: Well how about that: It IS a joke

well, that and modern tech makes it crazy-impractical to maintain a militia that could actually have a hope of being more than a speed bump in the face of an Empire's worth of regular armed forces. (which is the situation that would occur in the USA) ... they're not getting anywhere unless the army splits or sides with them, the navy stays out of it or sides with them, and the airforce splits, stays out of it, or sides with them, Anyway. at which point, why bother with the militia?

(also, of Course the government's going to act to curtail the existence of something who's ENTIRE POINT is to smash their faces in if they fall into corruption and tyranny...)